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Critical Analysis Of Making Of Arrest And After Arrest Procedures

The Criminal Procedure Code (CrPC) of 1973 is a comprehensive legislation that governs the procedures involved in the administration of criminal justice in India. This assignment aims to critically analyze the process of making arrests and procedure after arrest under CrPC 1973, shedding light on its legal nuances and implications. Focusing on the post-arrest stages, it delves into the legal nuances and practical implications of the CrPC provisions governing the treatment of individuals in custody.

Meaning Of Arrest

Neither the Code of Criminal Procedure nor any other substantive or procedural legislation defines the term "arrest." When used in its common and natural sense, the term "arrest" refers to the apprehension, restraint, or denial of one's personal liberty. The word "arrest" refers to the act of holding someone in custody while it is legal, which may be done in response to a crime, warrant, or laws.

Put simply, it means that someone's freedom is being denied by the exercise of legal authority, or the appearance of legal authority. It's crucial to keep in mind that not all physical restraints or coercion amount to an arrest; rather, an arrest occurs when all forms of constraint are used and the subject's freedom is totally deprived.

In R.R. Chari v. State of Uttar Pradesh, the Supreme Court defined arrest as the process of being taken into custody in order to face formal charges. According to the court, it refers to a person's seizure in the context of the constitution. The court in State of Punjab v. Ajaib Singh clarified that an arrest is a form of physical restraint imposed on a person who has been abducted during the process of locating and placing that person under custody; it is not always accompanied by an accusation or allegation of the actual or suspected commission of a crime.
Not only policemen but various other authorities have the powers to arrest an individual according to various provisions of CrPC, including:
  • A police officer with or without a warrant, or
  • A private person, or
  • A magistrate

Arrest How Made Under Section 46 Of The Code

  1. In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

    An oral statement of arrest that is not accompanied by physical contact or custody acceptance is not considered an arrest. An arrest is a form of liberty restriction that can be imposed by physically coming into contact with or touching the subject's body or by giving the subject over to the arresting officer. Arrest and custody are not interchangeable terms. There is custody involved with every arrest, but the opposite is untrue. Arresting someone simply entails holding them, detaining them in a police station, or limiting their movements inside the station's boundaries. If a person makes a statement to a police officer, accusing himself of having committed an offence, he would be considered to have submitted to the custody of the police officer.

    Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.

    The only police officer who can arrest a woman is a female cop. The female police officer has the right to use force to make an arrest if she resists. In some situations, it may even be assumed that she gave verbal notice of her arrest; yet, a male police officer will never physically touch or use force to make an arrest of a woman.
  2. If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

    If a person forcibly restrains or attempts to evade arrest, the person making the arrest may use necessary means or force for making the arrest. The means used to trigger the arrest of the person was necessary or not, has to be seen in light of a reasonable person having no intention to cause any serious injury to affect the arrest of that person.
  3. Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

    This subsection makes it very clear that anybody seeking to make an arrest may use all necessary methods to apprehend the accused; but, it does not grant anyone the authority to kill the person who is being arrested, unless there are circumstances in which doing so would result in death or life in prison.
  4. Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and Where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain The prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is Committed or the arrest is to be made.

A woman shall not be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall make a written report to obtain the prior permission of a Judicial Magistrate of the first class having jurisdiction over the local area, where the offence is committed or the arrest is to be made.

Post Arrest Procedure

There are various post arrest procedures, which are the rights of an arrested person and duties of a Police Officer, which should be followed for a valid arrest.
Some of these are:
  1. Inform the grounds of Arrest: It is the responsibility of the police officer who detains a person without a warrant to tell the grounds for the arrest. When a warrant is used to make an arrest, the police officer is obligated to inform the person arrested about the nature of the arrest and, if necessary, to present the warrant. If this is not done, the arrest will be considered illegal. It is also supported by the Indian Constitution which states that no one who has been arrested should be held in custody without first being notified of the basis for his arrest and having the opportunity to consult with a lawyer of his choice.
  2. Search of Arrested Person: The police officer can search the individual arrested, and the person must be given a receipt for all of founded items after the search. In addition, it is stipulated that in case of the search of a female, certain level of decency must be maintained.
  3. Seizure of Offensive Weapons: The officer or person conducting the arrest has the authority to seize any offensive weapon in the possession of person arrested and turn it over to the court or the officer in front of whom the person making the arrest is obligated to produce the person arrested, by the code.
  4. Medical Examination: For the purpose of facilitating effective investigation, the medical examination of the person arrested by a medical practitioner has been authorized. This is permitted if it is reasonably believed that the examination of the person will afford evidence to the Police Officer necessary for investigation. Section 53 of the Code empowers a senior police officer to compel the accused person to medical examination.

On the other hand, Article 20 of the Constitution provides that no person who is an accused can be compelled to give evidence against himself. Relying on the decision given by the Supreme Court in the case of State of Bombay vs. Kathi Kalu oghad , it was held that this section is not violative of Article 20(3) of the Constitution of India. The Law Commission explained, in its report, that the effect of Article 20(3) is confined only to written or oral testimony.
  1. Report before the Magistrate: When a police officer makes an arrest without a warrant, he owes it to the magistrate to appear before him as soon as possible (usually within 24 hours). It is also stated that the arrested person may not be taken anywhere other than the police station without appearing before the magistrate.15 Report of all such person arrested without warrant shall be sent to the District Magistrate. Also, the person arrested can be released only on bail bond or on the special order of the magistrate.

Written By: Manmeet Singh
, 4th Year Law student, Department of legal studies - Central University of Kashmir
Email: [email protected]

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